Andover Housing Authority v. Shkolnik, 443 Mass. 300 (2005)

As a preliminary matter, we note that the tenants did not present any evidence at trial that they were “qualified” handicapped persons such that, even if reasonable accommoda*310tions were made, they would be able to comply with the terms of their lease. The term “qualified handicapped person” typically has been discussed in the employment context. General Laws c. 151B, § 4 (16), provides that it is unlawful for an employer “to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation” (emphasis added). An employee is not “a ‘qualified handicapped person’ within the meaning of G. L. c. 151B and therefore is not entitled to the protection of that statute” if he engages in conduct “significantly inimical to the interests of his employer and in violation of the employer’s rules.” Garrity v. United Airlines, Inc., 421 Mass. 55, 63 (1995). This is true even where an employee’s disability arguably causes the misconduct at issue. Id. at 62-63. The term “qualified” handicapped person is not used in either the Fair Housing Act, 42 U.S.C. § 3604 (f)(2), or G. L. c. 151B, § 4 (7A) (2). However, it is used in § 504 of the Rehabilitation Act, 29 U.S.C. § 794, to which both of those statutes are analogous. See supra at 9 & n.13. We see little reason not to consider whether a plaintiff is a “qualified” handicapped person in the context of a housing discrimination claim “because many of the issues that arise in the ‘qualified’ analysis, also arise in the context of the ‘reasonable modifications’ or ‘undue burden’ analysis. That is, if more than reasonable modifications are required of an institution in order to accommodate an individual, then that individual is not qualified for the program.” Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir. 1998). In the public housing context, a “qualified” handicapped individual is one who could meet the authority’s eligibility requirements for occupancy and who could meet the conditions of a tenancy, with a reasonable accommodation or modification in the authority’s rules, policies, practices, or services. See G. L. c. 121B, § 32; 760 Code Mass. Regs. §§ 5.00 (1996); 760 Code Mass. Regs. §§ 6.00 (1998). Cf. Whittier Terrace Assocs. v. Hampshire, 26 Mass. App. Ct. 1020, 1020-1021 (1989). Here, the tenants made no showing that, even if eviction proceedings were withdrawn or delayed, *311they could comply with the terms of their lease by not disturbing their neighbors. The evidence plainly suggested otherwise.